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Newsletter - January 2008
2008-01-03 Dear Colleague Happy New Year! First, please note the Revised Friday Tea Gathering Programme for January – February. For those who do not receive my newsletters online, please note additional talk by Mr. Justice Cheung JA on 18th January. Mr. Billy Ma’s talk originally scheduled for 22 February will now be given on 28 March, and Mr. Eric Cheung will speak on another topic on 22 February. Those who have signed up for Mr. Ma’s talk will be automatically transferred to 28 March but may by notification either stay on for Mr. Cheung’s talk or obtain a refund if applicable. Decision of the Standing Committee of the National People’s Congress on 29 December 2007 Following the Report of the Chief Executive on 12 December 2007, the Standing Committee of the National People’s Congress has issued its Decision on 29 December 2007. The main points are: 1. The election of the Chief Executive may be implemented by universal suffrage in 2017 (Preamble); 2. After the election of the Chief Executive is implemented by universal suffrage, the election of all the members of LegCo by universal suffrage may be implemented (Preamble); 3. The election of the Chief Executive and of LegCo by universal suffrage shall not be implemented in 2012 (para.1); 4. The proportion of functional constituency seats and geographical constituency seats shall remain unchanged for 2012, and the procedure for voting on bills and motions in LegCo shall remain unchanged (para.1); 5. Subject to 3 – 4 above, appropriate amendments may be made to Annex I and Annex II of the Basic Law for the selection of the Chief Executive and formation of LegCo in 2012 (para.1). I know that many of us are bitterly disappointed, though unsurprised, by yet another denial of universal suffrage by Beijing. I also realize that there are others who are pleased that a timetable is given for universal suffrage. Putting emotions to one side, we should see clearly what is in fact decided. 1. Has Hong Kong been given a timetable for universal suffrage? The letter of the Decision is “may”, which makes it legally permitted but not required to elect the Chief Executive by universal suffrage in 2017. As explained by Mr. Qiao Xiaoyang, according to procedures laid down by the NPCSC, the election of the Chief Executive will not take place in 2017 if it is not endorsed by a two-thirds majority of LegCo members. Further, in the event that the election of the Chief Executive by universal suffrage does not take place in 2017, universal suffrage for LegCo will correspondingly not take place in 2020. This also explains why the date “2020” does not appear in the text of the Decision. In my view, the dates are open to change which can easily be brought about under the prevailing political situation in Hong Kong. 2. Is it a timetable for universal suffrage? According to the explanation of Mr. Qiao and his colleagues, the implementation of universal suffrage is not incompatible with a system of functional constituencies. For example, a system in which only members of a functional constituency are qualified to nominate or stand as candidates for election by the general public would be a form of universal suffrage. This view is at variance with our understanding of the law. Under Articles 2 and 25 of the ICCPR enshrined under Article 39 of the Basic Law, ‘universal suffrage” means “equal and universal suffrage”, with everyone having equal rights to vote and be elected. The UN Human Rights Committee has given its views more than once that the system of functional constituencies in Hong Kong is incompatible with the ICCPR. The mainland officials seem to ignore this, and Mr. Li Fei, Deputy Director of the Legal Affairs Commission, gave an entirely different interpretation of the relevant provisions. Hence the “timetable” indicated may not be for universal suffrage but something less. 3. What of reforms between now and 2012? The most important reason why we want reform urgently is because the present system is inherently unfair, in which a privileged few are given extra power to protect their vested interest over the interest of the general public. Most of the FCs are “rotten boroughs” which are susceptible to the Government’s control. This system is a trade-off of political support in exchange for interest and advantage. Most FCs can vote with the Government without compunction because they are not accountable to the public. This alliance has developed and strengthened over the past years. The privileged few do not give their support to the Government for free and the Government has become more exacting about the support it requires from them. The voting procedures for bills and motions whereby a majority in the directly elected half of LegCo can be defeated by failure to obtain a majority in the FCs half. Thus, a handful of FCs can veto every proposal not supported by the Government. This system has resulted in stagnation in policies such as reducing the gap between rich and poor, environmental protection, heritage conservation, anti-discrimination and democratization. It has also rendered the general public unable to speak through their elected representatives, be it on a question of air quality or abuse of police power or education. LegCo is fast becoming completely ineffectual as a check and balance. The immediate need for reform is to remove the systemic unfairness as speedily as possible, and the next reform package of the Government must take a significant step forward. The restrictions imposed by the NPCSC’s Decision about 2012 have created great difficulties which have to be overcome somehow. This is where we must exercise our minds. The way forward To secure Hong Kong’s future, a two-pronged approached is necessary: 1. Communication with Beijing: My observations from the meeting with the mainland officials is that the Central Authorities have got a much better grasp of how Hong Kong’s systems work, but there are still serious gaps. For example, the Deputy Director of the Hong Kong and Macau Affairs Zhang Xiaoming explained that FC seats should be kept because the 28 FCs are together responsible for 97% of Hong Kong’s GDP, thus appearing to justify the right to vote by economic prowess. Nevertheless, the willingness to explain is half of the way to communication. It is important to make Beijing understand that since they have overall control anyway, it is much wiser to retain real means of check and balance in the HKSAR, and that the best safeguards for stability are not “yes-men” and “yes-women” or “yes-group”, but counter-vailing forces which are not afraid to speak out and have credibility in the Hong Kong community. 2. Community and political action: Political parties and anyone else in a position to do so have a duty to explain the existing system to the general public, to help people to appreciate the kind of reform Hong Kong needs and how it can be achieved. The Government has stated that no reform proposals will be made before the end of this LegCo term, but will discuss the matter in the Commission on Strategy and Development in the 2008 – 2009 session. I and my colleagues in Civic Party and other friends and allies for democracy will do our best to promote public awareness through forums, seminars, pamphlets and other forms of social action. But most crucial of all we shall be promoting voters registration, because exercising their civic rights through the ballot box is the most powerful way in which Hong Kong people can make their voices heard. I hope to see members of the legal profession doing their part, because the rule of law cannot stand for long without a democratic system with real checks and balance. Election of Hong Kong SAR deputies to the NPC An election will take place on 25 January 2008 to elect 36 local Hong Kong deputies to the NPC. As a member of LegCo, I have a vote. Members of the legal sub-sector of the Election Committee for the Election of the Chief Executive are also eligible as voters. Some members of the profession have indicated their intention to stand for election. Your thoughts and suggestions on how I should vote will be welcome. Yours sincerely Margaret Ng |
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